Tuesday, March 28, 2017

Hidden factors that slow our courts and delay justice

Study shows why merely increasing the number of judges may not be enough to clear the alarming backlog of cases

Much popular attention pertaining to the judiciary has been on the vexed question of judicial appointments, a power struggle between the government and judges for determining who has the final word on the judiciary’s ideological tra
jectory and the careers of individuals manning it.

This has meant that the core issue — unacceptable delays in the judicial system — is sidelined. Delay is mainly seen as an HR issue — appoint more judges and delay will automatically reduce. By blaming delay solely on inadequate capacity, neither the judiciary nor the government is asking the hard questions: What are the mindsets within the judiciary that allow a culture of delay to fester?

As of September 30, 2016, the Supreme Court has nearly 61,000 pending cases, official figures say. The high courts have a backlog of more than 40 lakh cases, and all subordinate courts together are yet to dispose of around 2.85 crore cases. At all three levels, courts dispose of fewer cases than are filed. The number of pending cases keeps growing, litigants face even dimmer prospects of their cases being disposed of quickly.

This is the trend across the country. In high courts, 94% of cases have been pending for 5-15 years. In Alla- habad, the country’s largest and by many accounts, an inefficient court, 925,084 cases are pending. On an average, cases take three years and nine months to get disposed. In Delhi HC, considered publicly as one of the best, 66,281 are pending. It takes an average of two years and eight months to give its verdict in a case. To be fair, delays are not a peculiarly Indian phenomenon. Many advanced countries struggle to provide quick, high-quality justice to citizens. But in India the scale of the problem is unprecedented.

Focusing on capacity alone won’t reduce delays. A pervasive reason for delays is adjournments. A study by the Vidhi Centre for Legal Policy (VCLP) conducted on Delhi HC found that in 91% of cases delayed over two years, adjournments were sought and granted. Merely increasing the number of judges won’t help because adjournments are acceptable in our judicial system. These encourage delaying tactics, block judicial time, prevent effective case ma n a g e me n t and impoverish litigants. They deter many from seeking access to formal justice. Apart from the lawyers, who often charge per hearing, none benefits.

An initiative by VCLP — Justice, Access and Lowering Delays in India (Jaldi) — seeks to address the problem. It talks of reducing government litigation, compulsory use of mediation and other alternative dispute resolution mechanisms. It mentions simplifying procedures, recommending precise capacity reinforcements and use of technology. The goal is to find a way to clear all backlog in the courts within six years
.
This isn’t unrealistic. In Singapore, the implementation of similar reforms in the 1990s led to astonishing results, 95% of civil and 99% of criminal cases were disposed of in 1999. The average length of commercial cases fell from around six years in the 1980s to 1.25 years in 2000. The pending cases count hasn’t grown substantially since.

While implementing such reforms will present challenges, it is critical that the public narrative around delays changes. Delay in courts is not an HR issue — it is a question of the growth of a culture that has made delays acceptable. It impacts our ease of doing business rankings and hinders access to justice to the mazdoor whose employment has been unlawfully terminated.

Scarcely has there been an issue that cries out louder for the government and the judiciary to secure the constitutional mandate of speedy and effective access to justice.

By Arghya Sengupta is research director, Vidhi Centre for Legal Policy

#justice

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